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ALBANY � – After months of internal debate, the New York State Bar Association is slated to finally vote Saturday on gay marriage, perhaps the single most divisive issue the organization has confronted in recent years. The largest voluntary state bar group in the nation will consider two alternate proposals to address the equal protection interests of same-sex couples. One proposal would urge legislative action granting homosexuals the same marriage rights as heterosexuals. Another would call upon the Legislature to enact laws ensuring equal protection, but leaving the remedy � such as marriage, civil union or domestic registry � up to lawmakers. But while those two alternatives are formally before the House of Delegates, the policy-making body of the state bar, there are also vocal minorities arguing that the association should refrain from commenting on what is essentially a public policy matter; that the debate is premature since there are at least three trial-level rulings but no appellate authority on the constitutionality of New York’s ban on same-sex marriages; or that if the organization takes any position, it should condemn same-sex unions as immoral. The issue has generated so much discussion that the state bar has compiled what amounts to an inch-thick report containing the thoughts and observations of key committees, prominent members, organizations like Lambda and the Lesbian, Gay, Bisexual and Transgender Law Association of Greater New York. And there are comments of members threatening to resign from the group if it endorses gay marriage, a concept they find repugnant. Sample comments include: � “Same-sex families exist, and will continue to exist, whether or not there is legal recognition. While the absence of legal recognition of same-sex relationships is an obvious hardship for the adults involved, it is especially harmful, and often detrimental, to the children, where, absent an adoption, there is no legal mechanism to maintain a non-biological relationship.” � “Just as laws no longer ban marriages between people of different races or define wives as the property of their husbands, the law should not exclude a category of people from the institution of marriage and leave them in legal limbo based on prejudice and intolerance.” � “There are those for whom this is a flashpoint issue and who are strongly opposed. But I believe that with respect, openness and lack of righteousness, they can be persuaded that what’s good for same-sex couples is not necessarily bad for them. This is not a zero-sum game.” � “I am shocked and repelled by the insane conclusions these lawyers posing as social scientists have stated, and by their basic premise: which is to characterize marriage, an integral, vital and basic institution of human society, not the political state, from time immemorial, as a ‘challenged state action.’” � “Legal recognition of same sex unions is a wrong-headed and dangerous idea that would result in the erosion of moral values in New York State and the further weakening of the family structure.” � “I believe it is inappropriate for the Bar Association to become embroiled in this highly political issue. If the Bar Association diverts its energies to highly divisive political issues, the strength and focus of the Bar Association will diminish.” The Road Ahead The issue was brought to a head when the bar’s Special Committee to Study Issues Affecting Same-Sex Couples � formed in response to an initiative two years earlier by the Association of the Bar of the City of New York � unveiled a 380-page report last November. In that report, nine of the 12 members agreed that the Legislature must enact remedial legislation to protect the equal protection rights of homosexual couples. Five of the members voted to extend civil marriage benefits to gays. Four supported equal benefits for same-sex couples, but declined to endorse a specific remedy. And three, including two former presidents of the association, said the 72,000 member organization has no business weighing in on a social/public policy issue. If the New York State Bar Association does endorse gay marriage, it would join the Massachusetts bar in supporting a fundamental change in personal relationships. But even if it does go that route, it is not clear the Legislature is anywhere near ready to tackle the hot-button issue, especially since it is inclined to yield first to the courts. Meanwhile, the trial courts are divided and the Court of Appeals is considering whether to hear the matter on a direct appeal. However, most observers expect that the Court will deny a direct appeal and give the Appellate Divisions an opportunity to examine the issue before it comes to a final constitutional showdown before the Court. At least three trial courts have considered the constitutionality of existing state law that authorizes marriage only between a woman and man. Earlier this year, Manhattan Supreme Court Justice Doris Ling-Cohan in Hernandez v. Robles, 103434/04, declared unconstitutional the provisions of Domestic Relations Law to the extent that they bar same-sex marriages. But two Upstate judges, Supreme Court Justice E. Michael Kavanagh ( Kane v. Marsolais, 3473/04) of Kingston and Supreme Court Justice Robert C. Mulvey of Ithaca ( Seymour v. City Clerk, 458/04), came to the opposite conclusion. Attorney General Eliot Spitzer and New York City Corporation Counsel Michael A. Cardozo have each issued opinions stating that the existing law is constitutional. Anticipating an overflow crowd, Saturday’s House of Delegates meeting will be held at a downtown Albany hotel, the Crowne Plaza, rather than the usual venue, the State Bar’s headquarters just a few blocks away. � John Caher can be reached at [email protected].

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